Keeping a rented home when the tenant is in prison

A tenant who wants to keep their home whilst in prison will have to pay rent for the property. They should tell the landlord the property has not been abandoned.

The prisoner will keep their status as a tenant if the:

• rent is paid

• property is looked after

• prisoner intends to return on their release

The tenant should not give up their home without getting legal advice first. Giving up a home means the local authority can find them intentionally homeless. The authority can use it as a reason not to provide housing once the prisoner is released.

Most tenancies have a condition that the tenant occupies it as their ‘only or principal home’. If the landlord thinks the tenant is no longer living at the property, they might take steps to regain possession. Prisoners should tell their landlord in writing if they intend to return home, and the date they expect to return. They should leave their furniture and belongings in the property if it is safe to do so, as this helps to show they intend to return.

If the tenant leaves the property with no intention to return, they lose their statutory tenancy status and so the landlord can easily end the tenancy by giving a notice to quit. This can lead to disputes about whether the tenant intended to return. The courts will consider the facts on a case by case basis and look for evidence that the tenant intended to return.[1]

There is no need to tell the landlord about the absence if a joint tenant, spouse or civil partner is still living in the property.

Having a family member or friend take care of the property during the absence can help to show that the tenant intends to return. It can also prevent damage to the property and dereliction. The caretaker could visit the property to collect post and check the property, or they could rent a room as a lodger from the main tenant.

Most council tenants have a secure tenancy. They have a right to take in lodgers without asking their landlord. Housing association and private tenants usually need the landlord's consent to take in lodgers.

Unauthorised subletting is renting a social housing property out to another person and receiving the rent from the sub-tenant. Unauthorised subletting is classed as fraud. It leads to the permanent loss of security of tenure, meaning the tenant will never be an assured or secure tenant even if they move back in.

If the rent is not paid, the landlord is likely to take court action for possession of the tenancy.

The landlord must accept rent that is paid by the tenant’s spouse or civil partner while they are in prison.[2] Anyone who is not the spouse or civil partner can arrange with the landlord to pay the rent, but the landlord does not have to agree.

Some private tenancies have a guarantor who has agreed to pay the rent if the main tenant does not. The guarantor might be willing to pay the rent as it falls due, as an alternative to waiting for arrears to build up.

Benefits

Some tenants who are in prison can continue claiming benefits to pay the rent. The tenant must intend to return home when they are released.

A housing benefit claim can continue for up to 52 weeks before the tenant is sentenced. This includes prisoners on remand, and those awaiting sentencing.

After receiving a sentence, a housing benefit claim can continue for 13 weeks if the tenant is expected to return within that time. This applies to sentences of less than 26 weeks, to allow for remissions and the likelihood of early release.

For universal credit, the rules are the same whether the prisoner has been sentenced or not. Prisoners are not usually entitled to Universal Credit. They can continue to receive the housing costs element if:

• they were receiving Universal Credit as a single person immediately before they were taken into custody

• the Universal Credit included the housing element

• the sentence is expected to last no more than six months

A person living in the property while the tenant is in prison might be able to claim housing benefit or the housing costs element of universal credit to pay the rent, if they meet the conditions for being treated as liable to pay the rent.[3] In a housing benefit case, it was held that a claimant who moved into a property as a caretaker after the tenant went to prison could not be treated as liable for rent.[4]

Some tenancies are straightforward for a landlord to end. The landlord can use section 21 to end an assured shorthold tenancy without giving a reason. There are conditions for when a section 21 notice can be given.

If the rent is unpaid, the landlord can take possession action on grounds of rent arrears.

An introductory tenant of a local authority is in a probationary period. The local authority can evict the introductory tenant within the first year without having to prove a ground for possession or satisfy the court that it is reasonable to grant possession. Being convicted of an offence is likely to lead to the local authority terminating the introductory tenancy.

The options for a landlord to end a tenancy if the tenant has committed a criminal offence depend on the tenancy type.

Grounds for possession

Receiving a conviction for some types of offences can provide a landlord with a ground for possession.

The landlord can seek possession of a secure or assured tenancy if the tenant has been convicted of:[5]

• antisocial behaviour

• domestic abuse where the victim has left the house

• an offence committed at a riot

• an indictable offence committed in the local area

Grounds for possession for assured tenants can be used against assured shorthold tenants, including during the fixed term.

Possession of a person’s home is in scope for civil legal aid.

Mandatory grounds

A conviction for certain offences provides the landlord with a mandatory ground, meaning the court must grant possession.[6] There can be no arguments about whether it is reasonable to make a possession order.

The possession claim can be brought on a mandatory ground if the tenant has been convicted of a serious offence in the locality of the property, or elsewhere against a person who lives or is employed by the landlord in the locality. The serious offences are indictable offences, set out in legislation.[7] Mandatory grounds apply to assured and assured shorthold tenants, and secure tenants.

Other conditions which provide a mandatory ground for possession are:

• breach of an injunction to prevent nuisance or annoyance

• breach of a criminal behaviour order

• closure order made on the tenant's property

• conviction of an offence in relation to noise nuisance

A mandatory ground is not met if an appeal against the conviction or order is pending or successful.